Teixeira v. 1001043 Ontario Ltd. o/a Excell Communications, 2015 HRTO 1741

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daneila Teixeira

Applicant

-and-

1001043 Ontario Ltd. o/a Excell Communications

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: December 29, 2015

Citation: 2015 HRTO 1741

Indexed as: Teixeira v. 1001043 Ontario Ltd. o/a Excell Communications

WRITTEN SUBMISSIONS

Daniela Teixeira, Applicant

Mark Brown, Representative

1001043 Ontario Ltd. o/a Excell Communications, Respondent

Anthony S. Kassam, Representative

Introduction

1This Application was filed under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on January 16, 2015, and alleges discrimination in employment on the basis of disability. The Application is scheduled to be heard by the Tribunal on January 4, 2016.

2By correspondence dated December 23, 2015, the respondent’s representative advised that he had just been retained with respect to this matter, and requested that the January 4, 2016 hearing date be adjourned and rescheduled. The applicant opposed the adjournment request. On December 23, 2015, the parties were advised by the Tribunal that the adjournment request was denied with reasons to follow.

THE RESPONDENT’S ADJOURNMENT REQUEST

3In its December 23, 2015 request, the respondent submitted, among other things, that it would like to be legally represented at the hearing and that it has had some issues retaining representation for January 4, 2016 as the date immediately follows holidays. More particularly, the respondent submitted that it approached its legal counsel who was unavailable. The respondent then approached another legal service provider who was unavailable, and was then referred to its current representative who is also not available on January 4, 2016. The respondent submitted that, even if the current representative was available on January 4, 2016, they could not be prepared for the hearing. The respondent asked that the January 4, 2016 hearing date be adjourned and that the hearing be rescheduled to after April 14, 2016.

4In correspondence dated December 23, 2015, the applicant opposed the adjournment request. In reply submissions, also dated December 23, 2015, the respondent submitted, among other things, that its adjournment request was with merit and for good reasons.

DECISION

5The Tribunal’s Notice of Hearing indicates that requests for rescheduling and adjournments will be dealt with in accordance with the Tribunal’s Practice Direction on Scheduling (“Practice Direction”). This Practice Direction states that requests to reschedule must be made within 14 days of the date of the Notice of Confirmation of Hearing, and that the Tribunal discourages requests for adjournments outside this 14-day period, noting that requests for adjournment, particularly at the last minute, are a significant impediment to fair and timely access to justice. Consequently, the Tribunal will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative.

6In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at paras. 4 and 5, the Tribunal made the following comments regarding adjournment requests:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five [now fourteen] days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five [now fourteen] days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

When a party makes a decision to retain counsel after the notice of hearing has been issued, their “choice” of counsel is limited by the date previously scheduled….

7In addition, in Vallentyne v. Royal Canadian Legion, 2009 HRTO 534, at para. 6, the Tribunal specifically held with respect to the unavailability of counsel that:

The decision of a party to retain counsel after a hearing is scheduled is not the type of circumstance that would justify a request for adjournment. Absent exceptional circumstances, a party must find counsel who is available on the date already scheduled…

8The Tribunal has also held that a party’s decision to retain counsel after a hearing has been scheduled is not an “extraordinary circumstance” justifying an adjournment simply because counsel is unavailable or unprepared. See Valiani v. Canadian Labour Congress, 2011 HRTO 1886, at para. 9.

9In the present case, the Application was delivered to the respondent on January 29, 2015. The Notice of Hearing, setting out the January 4, 2016 hearing date, was issued on August 10, 2015. As such, it appears that the respondent has been aware of the January 4, 2016 hearing date since August, 2015. A decision by the respondent to retain a representative who is not available on the hearing date, shortly before the hearing, is not an exceptional circumstance that would justify the respondent’s request for an adjournment.

ORDER

10The respondent’s adjournment request is denied. The hearing will proceed as scheduled on January 4, 2016.

11The parties are reminded that they have an ongoing duty, pursuant to the Tribunal’s Rules of Procedure, to disclose arguably relevant documents to each other. In addition, if there are any additional documents that the parties intend to rely on at the hearing, they are required to provide copies of such documents to each other and to the Tribunal as soon as possible.

12The Tribunal is also in receipt of further correspondence from the respondent, filed December 29, 2015. The matters raised in the respondent’s further correspondence can be addressed at the outset of the hearing on January 4, 2016.